by Joshua Treem
Over the past several months there has been a great deal of attention paid to the issue of sexual harassment, misconduct, and abuse on college campuses. In the wake of complaints that colleges are, at the very least, not thoroughly investigating reports of abuse, or worse, ignoring them altogether, the federal Department of Education has issued new directives to schools instructing them to adopt procedures to deal with those claims and is threatening sanctions against schools that do not comply. This public outcry extends to the White House. In the face of this torrent of publicity it is inevitable that colleges and universities will respond with increasing energy and speed to reports of misconduct and abuse. While this is an altogether laudable goal what is getting lost in the discussion is any consideration of the standards and procedures by which these schools are adjudicating complaints which can produce draconian and life altering sanctions and penalties out of proportion to the severity of the complaint.
Our experience in two very recent cases has made us aware of the lack of any consistency between schools in their procedures and the danger faced found by those accused of committing acts which in many instances are allegations of criminal conduct. It is our intention to write from time to time about the issues facing those accused of misconduct and to offer information related to events and cases. We will discuss practices and procedures (including appeals), legal issues, pitfalls, and cases pending in both state and federal courts.
With these thoughts in mind, we offer some introductory principles that our experience has taught us apply in every case.
1. Know the Student Handbook:
It is important for students and parents to have some idea of the school’s policies and practices are for dealing with allegations of harassment, misconduct and abuse. They can be found in the school’s student handbook. By paying tuition and registering for classes students and parents are accepting these policies, procedures and practices as part of the contract made with the school. These will bear little, if any, relationship to traditional motions of due process. It is important to know what the limits of a student’s “rights” are. This isn’t “Law and Order” or “The Good Wife”.
2. Time is of the Essence and Having Counsel is critical:
A school’s procedure will likely require an almost immediate response from the accused/respondent to a notice of alleged misconduct, sometimes within as little as 48 hours. The response may have to be in person and uncounseled. It is vitally important for any student accused of misconduct to obtain counsel before responding and have counsel begin the process of advocating on behalf of the student. Every attempt should be made to delay the initiation of any proceedings until a thorough investigation can be conducted. In the event that cannot be accomplished, the only recourse for the student may be to seek emergency injunctive relief in court to halt the process. Typical campus processes also include some degree of appeal from an adverse decision. Hiring legal counsel immediately upon notice of an allegation of misconduct can be instrumental in creating a record for appeal or court proceeding.
3. Any allegations must be taken seriously by the student and the family:
The collateral consequences of either not responding to the allegations or getting an adverse decision can be enormous. Aside from sanctions imposed by the school, up to and including expulsion, the nature of the allegations could give rise to independent criminal charges that could result in incarceration and civil law suits and the potential of hefty monetary judgments. Schools may have cooperative agreements with local law enforcement agencies that deal with information sharing and investigative responsibility. Given the scope of the potential consequences and these effects, anyone accused needs to advise his or her parents immediately. There is a great deal at stake and the emotional toll on students, parents and siblings cannot be overstated. Family support is critical to one’s ability to “weather the storm” that these cases will create. Families are all in this together.